Aspects of the Use of Force in Decisions of the International Court of Justice

Abstract

In the present article we analyse the practice of the International Court of Justice (ICJ) in order to find out the position of the Court on existing norms of international law governing the use of force and the legality of self-defence.
The ICJ has ruled on the Legality of Use of Force (and the Legality of Self-Defence) in five of its judgments on Contentious Cases and two advisory opinions.
According to ICJ’s proceedings, the precondition for action in self-defence is an armed attack of one state against the other state. In view of the Court, whether the response to an armed attack is lawful, depends on the observance of the criteria of the necessity and the proportionality of the measures taken in self-defence. The Court does not believe that the concept of “armed attack” includes assistance to rebels in the form of the provision of weapons or logistical or other support.
Furthermore, the exercise of collective self-defence is not legal in the absence of a request by the State which is a victim of the alleged attack.
The Court has not ruled on the issue of the legality to exercise self-defence in case of the immanent threat of an armed attack or in case of a massive attack of irregular forces.
The provisions mentioned above are sufficient, given that the UN Security Council is taking due actions in due time. However, while the efficiency of the Security Council is questionable and the proliferation of the WMD remains a threat, the security and even the very existence of a state should be ensured through other means, extending to the possibility to use force against terrorist groups beyond the state’s territorial borders. At the same time, an unlimited possibility to use force for combating terrorism may contradict the purposes and principles of the United Nations Charter.
Progressive development of international law in relations to the use of force may resolve the matter in the future.